tence the offender to imprisonment by separate or solitary confinement at labor, 31 March 1860 § 19. not exceeding three years.(q) P. L. 389. 378. If any persons riotously and tumultuously assembled together, to the dis- Aggravated riots. turbance of the public peace, shall, unlawfully and with force, demolish or pull Ibid. § 20. down, or destroy, or begin to demolish, pull down or destroy, any public building, Riotous destrucprivate dwelling, church, meeting-house, stable, barn, mill, granary, malt-house or tion of buildings or out-house, or any building or erection used in carrying on any trade or manufac- machinery. ture, or any branch thereof, or any machinery, whether fixed or movable, prepared for or employed in any manufacture or any branch thereof, or any steam-engine or other engine for sinking, working or draining any mine, or any building or erection used in conducting the business of any mine, or any bridge, wagon-way, road or trunk, for conveying minerals from any mine; every such offender shall be guilty of a misdemeanor, and being convicted thereof, shall be imprisoned by separate or solitary confinement at labor, or by simple imprisonment, not exceeding seven years. (r) LXXVIII. Robbery. P. L. 408. offensive weapon. 379. If any person, being armed with an offensive weapon or instrument, shall 31 March 1860 § 100. rob, or assault with intent to rob, another, or shall, together with one or more person or persons, rob, or assault with intent to rob, or shall rob any person, and at Robbery, being the same time, or immediately before or immediately after such robbery, beat, armed with an strike or ill-use any person, or do violence to such person, the person so offending shall be guilty of felony, and being thereof convicted, shall be sentenced to pay a fine, not exceeding one thousand dollars, and undergo an imprisonment, by separate or solitary confinement at labor, not exceeding ten years. (s) Ibid. § 101. 380. If any one shall accuse any person of the abominable crime of sodomy or buggery, committed either with man or beast, or of any assault, with intent to Robbery by threats commit such abominable crime, or any attempt or endeavor to commit the same, to accuse of infaor of making or offering any solicitation, persuasion, promise or threat to any mous crime. person, whereby to move or induce such person to commit or permit such abominable crime, with a view and intent, in any of the cases aforesaid, to extort or gain from such person, and shall, by intimidating such person by such accusation or threat, extort or gain from such person any money or property, the person so offending shall be deemed guilty of felony, and being thereof convicted, shall be sentenced to pay a fine, not exceeding one thousand dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, not exceeding ten years. Ibid. § 102. 381. If any person shall rob another, or shall steal any property from the person of another, or shall assault any person with intent to rob him, or shall, by menaces Robbery, stealing or by force, demand any property of another with intent to steal the same, such from the person, person shall be guilty of felony, and being convicted thereof, shall be sentenced to and by menaces. pay a fine, not exceeding one thousand dollars, and to undergo an imprisonment, by separate or solitary confinement, not exceeding five years.(1) P. L. 139. 382. If any person shall, by fraud, force, threats or menaces, or by seizing, gag- 8 May 1876 § 1. ging or tying, compel, or attempt to compel, another to surrender the key or other appliance, or to divulge the combination, secret or other means used to open any Punishment of bank, vault, safe or other depository of money, securities or property, or if any bank robbers. person shall administer, or attempt to administer, to another, any stupefying or overpowering drug, matter or thing, for the purpose of enabling such offender to obtain such key or other appliance, with intent, in any of the cases aforesaid, to steal such money, securities or property, or any portion thereof, every such offender shall be guilty of a felony; and being thereof convicted, shall be sentenced to pay a fine, not exceeding ten thousand dollars, and to undergo imprisonment at hard labor, not exceeding twenty years. (7) This section is intended to supply the Province law passed in 1700, 1 Sm. 30, and the 7th section of the act 9 April 1849, P. L. 526, providing against aggravated riots. The punishment of rioters, by the act of 1700, is not defined, but is directed to be according to the laws of England, or in other words, according to the common law. The same punishment of ordinary riots is inflicted by this section, except that its extent is limited. The punishment of aggravated riots is that directed by the act of 9 April 1849. Report on the Penal Code 15. (r) This section embraces a class of aggravated riots, which it was thought best, for public admonition, should be enumerated and defined, and against which, from their dangerous character, adequate punishments are provided, leaving, however, to the courts ample discretion to modify them, as circumstances may require. The section is new to our statute law. Report on the Penal Code 15. (s) The 100th, 101st and 102d sections are partially The existing legislation against the crime of new. robbery will be found in the seventh section of the (t) See Commonwealth v. Snelling, 4 Binn. 379. The 28 June 1885. P. L. 136. Fraudulently secreting or removing property. cealment. LXXIX. Secretion and removal. 383. Any person who shall remove any of his property, or the property of any other person or persons, out of any county, with intent to prevent the same from being levied upon by any execution, or who shall secrete, assign, convey or otherwise dispose of any of his property, or the property of any other person, with intent to defraud any creditor,(u) or to prevent such property from being levied upon by any execution, or to prevent such property from being made liable for the payment of his debts, or the debts of any other person, and any person who Reception or con- shall receive such property, with such intent, or who shall, with like intent, collude with any debtor, or any other person, for the concealment of such property, or for giving a false color thereto, or shall conceal any grant, sale, lease, bond or other instrument or proceeding, either in writing or by parol, or shall become a grantee, purchaser, lessee, obligee or other like party in any such instrument or proceeding, with the like fraudulent intent, or shall act as broker, scrivener,(v) agent or witness in regard to such instrument or proceeding with like intent, such person or persons, on conviction thereof, shall be guilty of a misdemeanor, and be sentenced to pay a sum not exceeding the value of the property or effects so secreted, assigned, conveyed or otherwise disposed of or concealed, or in respect to which such collusion shall have taken place, and undergo an imprisonment, not exceeding one year.(w) Becoming grantee, purchaser, &c. Penalty. 31 March 1860 § 41. P. L. 392. Seduction punished. 31 March 1860 § 47. P. L. 395. ture. LXXX. Seduction. 384. The seduction of any female of good repute, (x) under twenty-one years of age, with illicit connection, under promise of marriage, (y) is hereby declared to be a misdemeanor;(z) and any person who shall be convicted thereof, shall be sentenced to pay a fine, not exceeding five thousand dollars, and to undergo an imprisonment, either at labor by separate or solitary confinement, or imprisonment without labor, not exceeding three years, or both, or either, at the discretion of the court: Provided, That the promise of marriage shall not be deemed established, unless the testimony of the female seduced is corroborated by other evidence,(a) either circumstantial or positive.(b) LXXXI. Sepulture. 385. Any person who shall wilfully and maliciously destroy, mutilate, deface, injure or remove any tomb, monument, gravestone or other edifice, placed in any Violation of sepul- cemetery or graveyard appropriated to and used for the interment of human beings in this commonwealth; or shall wilfully or maliciously injure, destroy or remove any fence, railing or other work for the protection or ornament of such places of interment; or shall wilfully open any tomb, vault or grave, within the same, and clandestinely remove any body or remains therefrom; (c) or maliciously destroy any tree or shrubbery growing in such cemetery or graveyard; shall be guilty of a misdemeanor, and on conviction of either of the said offences, be sentenced to undergo an imprisonment, not exceeding one year, or to pay a fine, not exceeding one hundred dollars, or both, or either, at the discretion of the court.(d) (u) To constitute this offence, the assignment must be with a fraudulent intent, conceived at the time of conveyance; if made bona fide, although with intent to give a preference, it is not criminal. Commonwealth v. Hickey, 2 Pars. 317. See Prough v. Entriken, 11 P. S. 84. There must be an actual secreting or assigning; a mere refusal to surrender the goods, is not enough. Commonwealth v. Smith, 1 Brewst. 347. (v) A scrivener is a person who receives money to lay out upon security, and to hold the money in his hands until an opportunity offers of laying it out. Harman v. Johnson, 2 Ellis & Bl. 61; s. c. 3 C. & K. 272. (w) This is an amendment of the act 31 March 1860, $ 130, which was itself a transcript of the 2d section of the act 12 July 1842, P. L. 344. But a (2) A female of bad reputation at the time the defendant obtained connection with her, whether such reputation was acquired by crime, or imprudence only, is not within the protection of the act. single error will not place her beyond its protection, if she has repented, and is walking in the path of virtue, and enjoying the esteem of her acquaintances, when she is led astray. Commonwealth v. McCarty, 2 Clark 351. Lewis's Cr. L. 51. See Zitzer v. Merkel, 24 P. S. 408. The commonwealth must prove affirmatively the good repute of the female seduced. Oliver v. Commonwealth, 101 P. S. 215. (y) This must be proved to the satisfaction of the jury. Commonwealth v. McCarty, 2 Clark 351. See Baldy v. Stratton, 11 P. S. 318. Moritz v. Melhorn, 13 (z) On an indictment for seduction, the defendant may be convicted of simple fornication. Dinkey v. Commonwealth, 17 P. S. 126. A marriage after seduction, though followed by immediate desertion of the husband, is a defence to a prosecution under this act. Commonwealth v. Eichar, 4 Clark 326. But not to a subsequent action for damages by the father of the female seduced. Eichar v. Kistler, 14 P. S. 282. See Barnett v. Kimmell, 35 Ibid. 13. (a) See Rice v. Commonwealth, 100 P. S. 28. Commonwealth v. Walton, 2 Brewst. 487. (b) This section is the revision and re-enactment of the first section of the act of 19 April 1843, P. L. 348; by this act the crime is punished by a fine, not exceeding five thousand dollars, and by imprisonment by solitary confinement at labor, not less than one nor more than three years, or simple imprisonment, at the discretion of the court. The only alteration proposed is the abolition of the minimum punishment, in accordance with the general principles of the bill. Report on the Penal Code 19. (c) This disinterment of a body is a misdemeanor at common law; but the legislature has power to vacate a burial-ground, and to direct the removal of the bodies therefrom. Kincaid's Appeal, 66 P. S. 411. As to the right of property in a corpse, see 4 Am. L. Times 128. (d) This section is the consolidation of various enactments found in laws incorporating cemetery LXXXII. Sodomy - Buggery. 386. If any person shall commit sodomy or buggery, he shall be guilty of felony, 31 March 1860 § 32. and on conviction, be sentenced to pay a fine, not exceeding one thousand dollars, P. L. 392. and to undergo an imprisonment, by separate or solitary confinement at labor, not exceeding ten years.(e) ̧ Sodomy. Ibid. § 33. Attempt and solici 387. If any person shall, unlawfully and maliciously, assault another, with the intent to commit sodomy or buggery, or if any person shall, wickedly and unlawfully solicit and incite, and endeavor to persuade another, to permit and suffer such tation to commit person to commit sodomy or buggery with him, such person shall be guilty of a sodomy. misdemeanor, and being convicted of an assault with the intent aforesaid, or of so inciting another to suffer the act of sodomy or buggery to be committed with him, shall be sentenced to pay a fine, not exceeding three hundred dollars, and undergo an imprisonment, by separate or solitary confinement at labor, not exceeding three years.(g) gery. P. L. 148. 388. The terms sodomy and buggery, as and where used in the laws of this com- 11 June 1879 § 1. monwealth, shall be understood to be a carnal copulation by human beings with each other against nature, res veneria in ano, or with a beast, and shall be taken to Definition of cover and include the act or acts where any person shall wilfully and wickedly sodomy and bughave carnal knowledge, in a manner against nature, of any other person, by penetrating the mouth of such person; and any person who shall wickedly suffer or permit any other person to wickedly and indecently penetrate, in a manner against nature, his or her mouth, by carnal intercourse, he, she and every such person, committing any of the acts aforesaid, or suffering the same to be committed as aforesaid, shall be guilty of the crime of sodomy or buggery, and upon conviction thereof, shall be liable to the punishment now prescribed by law for the crime of Punishment. sodomy or buggery. LXXXIII. Soldiers' commissions and discharges. 389. It shall be unlawful for any person or persons who has or have the posses- 30 April 1885 § 1. sion or control of, or who may hereafter become possessed of, the commission or P. L. 13. discharge papers of any officer, soldier, sailor or marine of the United States Withholding comarmy or navy, to withhold the same from the party named in such commission or mission or disdischarge when such officer, soldier, sailor or marine shall demand possession charge. thereof. Ibid. 390. It shall also be unlawful for any person or persons having the possession of any commission or discharge, as aforesaid, to wilfully destroy, mutilate, or Wilful mutilation destroy or make away with, such commission or discharge, to the prejudice of the owner thereof, or to deliver the same to any person other than the party named person. therein, without the written request of such officer, soldier, sailor or marine. or delivery to third Ibid. 391. In case of the death of the party named in such commission or discharge, when the possession may be as aforesaid, the party or parties having possession shall deliver up the same on the written request of the widow, or legal representative In case of death. of such officer, soldier, sailor or marine. Ibid. § 2. 392. Any person or persons who shall violate the provisions of the preceding section, or refuse to comply with the requirements thereof, shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be fined not exceeding five hun- Punishment. dred dollars, and imprisoned not exceeding three months, or both, or either, at the discretion of the court before which the conviction be made. LXXXIV. Surety of the peace. 393. If any person shall threaten the person of another to wound, kill or destroy 31 March 1860 § 6. him, or to do him any harm in person or estate, (h) and the person threatened shall P. L. 284. (e) This crime is now punished by the 4th section of the act 23 April 1829, 10 Sm. 437, by solitary confinement at labor, not less than one nor more than five years. The present section authorizes the courts to extend this punishment to ten years, where the crime calls for special severity. Report on the Penal Code 18. By the act of 1705, a conviction of this offence, by a married man, entitled the party injured to a divorce. Bradford's Laws, ed. 1714, p. 41. See Commonwealth v. Smith, 14 Luz. L. Reg. 362. Commontrealth v. King, Public Ledger, 19 April 1890. (g) Attempts to commit, and solicitations to commit this crime, are not embraced within the provisions of the act of 1829; punishment in such cases must now be inflicted under the 4th section of the act of 1790, 2 Sm. 532; and the 1st section of the act 4 April 1807, 4 Sm. 393. These sections of the acts of 1700 and 1807 are general provisions, which prescribe imprisonment at hard labor, not exceeding seven years, in all cases where, previously, burning in the hand, cutting off the ears, nailing the ear or ears to the pillory, placing in and upon the pillory, whipping or imprisonment for life, might have been inflicted. As these sections are proposed to be repealed, it is necessary to provide against these offences, as well as all others supposed to be so circumstanced. Report on the Penal Code 18. (h) Surety of the peace is demandable of right by any individual who will make the necessary oath. Commonwealth v. Duane, 1 Binn. 102 n. See Commonwealth v. Edwards, 1 Ash. 46. Case of Aldermen, 2 Pars. 458. P. L. 284. Upon threat to wound, kill, destroy or harm. 31 March 1860 § 6. appear before a justice of the peace, and attest, on oath or affirmation, that he believes that, by such threatening, he is in danger of being hurt in body or estate, such person so threatening as aforesaid, shall be bound over, with one sufficient surety, to appear at the next sessions, (i) according to law, and in the meantime to be of his good behavior, and keep the peace toward all citizens of this commonwealth.(k) If any person, not being an officer on duty in the military or naval service of the state or of the United States, shall go armed with a dirk, dagger, sword or pistol, or other offensive or dangerous weapon, without reasonable cause to fear an assault or other injury or violence to his family, person or property, he may, on complaint of any person having reasonable cause to fear a breach of the peace therefrom, be required to find surety of the peace as aforesaid.(1) 31 March 1860 § 72. P. L. 402. Revealing tele graphic despatches. 31 March 1860 §176. P. L. 425. LXXXV. Telegrams. 394. If any superintendent, operator or other person, who may be engaged in any telegraph line, shall use, or cause to be used, or make known, or cause to be made known, the contents of any despatch, or any part thereof, sent from or received at any telegraph office in this commonwealth, or in anywise unlawfully expose another's business or secret, or in anywise impair the value of any correspondence so sent or received, such person shall be guilty of a misdemeanor, (m) and on conviction, be sentenced to pay a fine, not exceeding five hundred dollars, and to undergo an imprisonment, not exceeding six months, or both, or either, at the discretion of the court. (n) 395. If any person, whether an operator in any telegraph office or otherwise, shall knowingly send or cause to be sent, by telegraph, any false or forged message, Forged telegraphic as from such office, or as from any other person, knowing the same to be false, forged or counterfeited, with intent to deceive, injure or defraud any individual or body corporate, such offender, on conviction, shall be guilty of a misdemeanor, and be sentenced to pay a fine, not exceeding five hundred dollars, and undergo an imprisonment, not exceeding one year.(0) despatches. 31 March 1860 § 23. P. L. 390. Charging crime punishable with imprisonment at labor. 8 May 1876 § 1. P. L. 141. Crime need not be so punishable. LXXXVI. Threatening letters. 396. If any person shall knowingly send or deliver, or utter to any other person, any letter or writing, accusing or threatening to accuse either the person to whom such letter or writing shall be sent or delivered, or any other person of any crime or misdemeanor [punishable by law with imprisonment at labor], (p) with a view or intent to extort or gain, by means of such threatening letter or writing, any property, money, security or other valuable thing, from any person whatsoever; or shall send, deliver or utter any letter or writing, threatening to kill or murder any other person, or to burn or destroy any coal-breaker, house, barn or other building, or any rick or stack of grain, hay or straw, or other agricultural produce; every such offender shall be guilty of a misdemeanor, and on conviction, be sentenced to an imprisonment by separate or solitary confinement at labor, or by simple imprisonment, not exceeding three years, and to pay a fine, not exceeding one thousand dollars.(9) 397. If any person shall knowingly send or deliver or utter to any other person any letter or writing, accusing or threatening to accuse, either the person to whom such letter or writing shall be sent or delivered, or any other person, of any crime or misdemeanor, with a view or intent to extort or gain, by means of such threatening letter or writing, any property, moneys, security or other valuable thing from any person whatever, every such offender shall be guilty of a misdemeanor; and on conviction, be sentenced to an imprisonment, by separate or solitary confinement at labor, or by simple imprisonment, not exceeding three years, and to pay a fine, (i) A committing magistrate has no authority to bind a person to keep the peace, or for his good behavior, longer than the next term of the court. Case of Aldermen, 2 Pars. 458. (k) Surety for good behavior may be ordered by the court, after the acquittal of a prisoner, in such sum, and for such length of time, as the public safety requires. Respublica v. Donagan, 2 Y. 437. Bamber v. Commonwealth, 10 P. S. 339. State v. Parish, 2 Hayw. 73-4. (2) This section is partly taken from the act of 1700, 1 Sm. 5; the addition thereto provided by this section, against the unnecessarily carrying deadly weapons, is introduced from an obvious necessity, arising from daily experience and observation. Report on the Penal Code 39. (m) This act only makes the offender liable where he unlawfully exposes the secrets of the telegraph office; when it is done wantonly or voluntarily: it does not apply to cases where such disclosures become material in a court of justice. Henisler v. Freedman, 2 Pars. 274. (p) See infra 397. (q) This section is new. By the common law, the extortion of money by actual duress, or by threats of such a nature as are calculated to overcome a man of ordinary firmness, is an indictable misdemeanor; but what are the threats which a man of ordinary firmness ought to resist, is a question which, accompanied with more or less embarrassment, always presents itself in such cases. The provisions proposed by this section are a consolidation of the English statutes on the subject, rendered necessary by the difficulties which beset common-law proceedings against such crimes. Report on the Penal Code 16. not exceeding one thousand dollars. And so much of the 23d section of the act of the 31st of March 1860, as requires that the crime or misdemeanor of which any person is accused or threatened to be accused, in such threatening letter or writing, to be a crime or misdemeanor, punishable with imprisonment at labor, be and the same is hereby repealed. LXXXVII. Tramps. 8 May 1876 § 1. P. L. 141. P. L. 33. 398. Any person going about from place to place (r) begging, asking or subsist- 30 April 1879 § 1. ing upon charity, and for the purpose of acquiring money or a living, and who shall have no fixed place of residence or lawful occupation in the county or city in Definition of which he shall be arrested, shall be taken and deemed to be a tramp, and guilty of a tramp. misdemeanor; and on conviction shall be sentenced to undergo an imprisonment Punishment. by separate and solitary confinement at labor, in the county jail or workhouse, for not more than twelve months, in the discretion of the court: Provided, That if Discharge. any person so arrested can prove, by satisfactory evidence, that he does not make a practice of going about begging or subsisting upon alms, for the purpose aforesaid, in the manner above set forth, he shall not be deemed guilty of the offence hereinbefore described, and upon such proof, shall be discharged from arrest, either by the magistrate before whom he is committed, or by the court upon hearing of the case upon writ of habeas corpus. Ibid. § 2. 399. Any tramp who shall enter any dwelling-house, against the will or without the permission of the owner or occupant thereof, or shall kindle any fire in the Penalty for enterhighway, or on the land of another, without the owner's consent, or shall be found ing houses without carrying any fire-arms or other dangerous weapon, with intent unlawfully to do permission. injury or intimidate any other person, which intent may be inferred by the jury trying the case, from the facts that the defendant is a tramp, and so armed, or shall do, or threaten to do, any injury, not amounting to a felony, to any person, or to the real or personal estate of another, shall, upon conviction, be deemed guilty of a misdemeanor, and shall be sentenced to undergo an imprisonment by separate or solitary confinement at labor for a period not exceeding three years. 400. Any act of beggary or vagrancy, by any person described by the first section of this act, shall be primâ facie evidence that the person committing the same Primâ facie eviis a tramp, within the meaning of this act, subject to the proviso contained in dence. section one of this act. Ibid. § 3. Ibid. § 4. 401. Any person, upon view of any offence described in this act, may apprehend the offender and take him before a justice of the peace or alderman, whose duty it Arrest, &c., of shall be, after hearing the evidence, to discharge or to commit the prisoner for offenders. trial, as in the case of other misdemeanors. Ibid. § 5. 402. This act shall not apply to any female, or minor under the age of sixteen years, nor to any blind, deaf or dumb person, nor shall it be applicable to any Not to apply to maimed or crippled person who is unable to perform manual labor. LXXXVIII. Treason. certain persons. P. L. 385. 403. If any person(s) owing allegiance to the commonwealth of Pennsylvania, (t) 31 March 1860 § 1. shall levy war against the same, (u) or shall adhere to the enemies thereof, giving (r) One who has a fixed place of residence within the county cannot be convicted as a tramp, though guilty of occasional acts of begging and vagrancy. Commonwealth v. Gill, 7 W. N. C. 557. See tit. "Vagrants." (8) The 1st and 2d sections of this act are almost literal transcripts of the act of congress, declaring and punishing treason against the United States. The only addition thereto is that found in the proviso of the second section, which precludes the infliction of the penalties of misprision of treason, on the husband and wife concealing each their knowledge of the other's treason. Such a concealment, at common law, makes the party so concealing guilty of misprision of treason, the gravity of the offence being supposed to require the husband and wife to denounce each other. It seems unnecessary, at this period of advanced civilization, to reason in favor of a proposition which changes this harsh and repulsive feature of the common law. The statutes which these sections are proposed to supply, are the act of 11 February 1777, 1 Sm. 435; and the act of 3 December 1782, 2 Sm. 60. Punishment for treason is also provided for by the 4th section of the act of 23 April 1829, 10 Sm. 431. Report on the Penal Code 10-11. (t) Treason is a breach of allegiance, and can be committed by him only who owes allegiance, either perpetual or temporary. United States v. Wiltberger, 5 Wheat. 97. It is a levying of war against a state, and treason for a large number of men armed and organized to engage in the common purpose to defy the law, to resist its officers and to deprive any portion of their fellow-citizens of their legal rights. Commonwealth v. O'Donnell, 12 C. C. 97. (u) To constitute a levying of war, there must be an assemblage of people, with force and arms, to overthrow the government, or resist the laws. United States v. Greathouse, 2 Abb. U. S. 364. Where a body of armed men is mustered in military array, for a treasonable purpose, every step which any one of them takes, in part execution of their purpose, is an overt act of treason, in levying war. United States v. Greiner, 4 Phila. 396. Where the premeditated object and intent of a riotous assembly is to prevent, by force and violence, the execution of a law of the state, to coerce its repeal by legislative authority, or to deprive any class of the community of the protection afforded by law, and the rioters proceed to execute by force their premeditated objects and intents, they are guilty of treason, in levying war against the state. United States v. Hanway, 2 Wall. Jr. C. C. 140, 202. United States v. Fries, Whart. St. Tr. 634. United States v. Vigol, 2 Dall. 346. United States v. Mitchell, Ibid. 348. Wharton on Homicide 462. But a resistance to the execution of a law of the state, accompanied with any degree of force, is not treason; to constitute that offence, the object of the resistance must be of a public and general character. United States v. Horie, 1 Paine 265. And there must be an actual levying of war; a conspiracy to subvert the government by force, is not treason; nor is a mere enlistment of men, who are not assembled, a levying |